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New EPA reports on fracking waste don't go far enough

U.S. EPA just released two new reports on the waste generated by oil and gas exploration and production, including fracking.

NRDC has been concerned for a long time about this dangerous waste, which is exempt from federal hazardous waste safeguards (more details here). We've been calling on Congress to close this gaping loophole in federal law for years, and we've asked EPA to do the same. We've documented cases around the country where this dangerous waste has been released into the environment and endangered drinking water, polluted air, and harmed human health.

Because of the loophole in current law, any waste from oil and gas operations--regardless of how toxic it may be--is exempt from federal hazardous waste laws. It is outrageous. Particularly for people who have this waste stored or dumped in their backyards.

The first EPA report is a review of state regulations in 26 states. EPA found that "State regulations vary greatly in scope and detail." We would definitely agree with that.

EPA determined that states commonly have "some liner requirements for pits or impoundments, secondary containment requirements for tanks, setback requirements for solid waste management facilities from critical infrastructure or inhabited development, minimum freeboard requirements for fluid levels in pits, impoundments, and tanks, various inspection, operation, and maintenance requirements, permitting of solid waste management facilities requirements, and closure and reclamation requirements." The emphasis on "some" was added by me. Not all states in the review have each of these. And, even the rules they do have may not be particularly strong. The EPA review provides the citation for each state rule, so a citizen can look up their state laws if the state rules are available on line.

The EPA also found that it was not typical for states to have requirements for groundwater monitoring, leachate collection, air monitoring, or waste characterization. But they should have all those things.

The second EPA report is a review of more than 80 publicly available sources of voluntary management practices for oil and gas waste pits, tanks, and land application/disposal. EPA says that it did not evaluate the adequacy or protectiveness of any of the voluntary management practices summarized in this document. But, at least EPA does say that there is a lot of existing information out there.

My main take-away from these two documents is that the document with the voluntary practices is a lot longer than the document with the state-mandated practices. Some of the voluntary practices are recommended by industry sources, so why shouldn't they be required?

EPA concludes by saying that it agrees with the recommendation of the Shale Gas Subcommittee of the Secretary of Energy’s Advisory Board (SEAB) that the federal government should encourage the development of additional and improved "best practices." But, development of practices is not enough. If they're not required, they won't be used everywhere they are needed to protect clean water, clean air, human health, and wildlife.

While these documents provide valuable information for the public, by pointing out so many "voluntary" practices, they also point to the failures of our regulators to protect our environment from toxic oil and gas waste.

Last year Congressman Matt Cartwright introduced legislation that would close the loophole in our federal law for toxic oil and gas waste. H.R. 2825, the Closing Loopholes and Ending Arbitrary and Needless Evasion of Regulations Act of 2013, is commonly known as the CLEANER Act. It already has 64 cosponsors, but it needs more. You can ask your Member of Congress to sponsor this bill by taking action on NRDC's website.